Citation Nr: 0334251
Decision Date: 12/09/03 Archive Date: 12/16/03
DOCKET NO. 01-03 848 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUE
Entitlement to an increased evaluation for chronic low back
strain, currently rated 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M.Cooper, Counsel
INTRODUCTION
The veteran served on active duty from February 1980 to
February 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions which determined that
an evaluation in excess of 20 percent for chronic low back
strain. The veteran was scheduled for a hearing before a
Veterans Law Judge at the RO in October 2003 but she failed
to appear.
The Board also notes that in an October 2000 rating decision,
the evaluation for major depressive disorder was increased to
30 percent disabling. In March 2001, the veteran indicated
that she felt an even higher disability rating was warranted
for her psychiatric disorder. In a February 2002 decision
review officer's decision, the rating for service-connected
major depressive disorder was increased to 50 percent
disabling. A statement of the case was issued that same
month. The veteran submitted a substantive appeal which was
received in May 2002. Since a substantive appeal was not
received within one year of the rating decision that issue
was not certified for appeal. Therefore, the issue of
entitlement to an increased rating for major depressive
disorder is not in appellate status, and the Board has no
jurisdiction over that matter. See 38 U.S.C.A. §§ 7104, 7105
(West 2002); 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202
(2003)..
REMAND
The Veterans Claims Assistance Act (VCAA) was enacted on
November 9, 2000. The VCAA modified the Secretary's duties
to notify and assist claimants. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002). VCAA includes an
enhanced duty on the part of VA to notify a claimant of the
information and evidence necessary to substantiate a claim
for VA benefits and which evidence, if any, the veteran is
expected to obtain and submit, and which evidence will be
obtained by VA. See 38 U.S.C.A. § 5103(a) and (b) (West
2002). Also see Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002).
After having carefully reviewed the record, the Board finds
that the requirements of the VCAA have not been satisfied
with respect to the issue on appeal. The Board notes that
the VCAA specifically provides that the duty to assist
includes providing a medical examination or obtaining a
medical opinion when such an examination or opinion is
necessary to make a decision on the claim. VCAA. 38
U.S.C.A. § 5103A(b)(1), (2).
The Board finds that another VA spine examination is
necessary in order to determine the current severity of the
service-connected lumbosacral strain. The Board notes that
while this appeal was pending, the applicable rating criteria
for lumbar spine disabilities were amended effective
September 23, 2002. See 67 Fed. Reg. 54345-54349 (August 22,
2002). The criteria were again amended effective September
26, 2003. See 68 Fed. Reg. 51454-51458 (Aug. 27, 2003).
Another VA examination is needed because the VA examination
reports of record are inadequate for rating the lumbosacral
strain under the revised rating criteria. Specifically, the
VA examination reports do not provide a combined range of
motion (sum of the range of forward flexion, extension, left
and right lateral flexion, and left and right rotation) of
the lumbar spine.
The Board also finds that the veteran should be evaluated for
any associated objective neurological abnormalities. The
medical evidence of record reveals that a magnetic resonance
imaging (MRI) study conducted in June 1998 revealed slight to
mild generalized bulging and spurring at L5-S1. In an April
2000 statement, the veteran reported subjective complaints of
numbness and shooting pain from her back to her legs.
However, the October 2001 VA examination report reflects a
diagnosis of mechanical low back pain with no evidence of
radicular symptoms.
The RO has adjudicated the veteran's claims based on the
previous schedular criteria and the veteran has not been
provided notice of the revised criteria. The Board finds
that the RO should notify the veteran of these revised
regulations. The veteran is entitled to the application of
the version of the regulation that is more favorable to him
from the effective date of the new criteria, but only the
former criteria are to be applied for the period prior to the
effective date of the new criteria. See Kuzma v. Principi,
341 F.3d 1327 (Fed. Cir. 2003).
Lastly, as noted above, in a decision promulgated in
September, 2003, Paralyzed Veterans of America v. Secretary
of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the
United States Court of Appeals for the Federal Circuit
invalidated the 30-day response period contained in 38 C.F.R.
§ 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1).
The Court made a conclusion similar to the one reached in
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related
Board regulation, 38 C.F.R. § 19.9). The Court found that
the 30-day period provided in § 3.159(b)(1) to respond to a
VCAA duty to notify is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. Therefore,
since this case is being remanded for additional development
or to cure a procedural defect, the RO must take this
opportunity to inform the appellant that notwithstanding the
information previously provided, a full year is allowed to
respond to a VCAA notice.
Accordingly, this case is remanded for the following action:
1. The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, as well as
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002), and any other applicable
legal precedent.
2. The veteran should be notified of the
revisions to VA's rating schedule to
include the General Rating Formula for
Diseases and Injuries of the Spine,
effective September 26, 2003.
3. The veteran should be afforded VA
orthopedic and neurological examinations
to determine the nature, extent, and
severity of the service-connected chronic
low back strain. The veteran's VA claims
folder must be made available to the
examiner for review in connection with
the examination.
The examiner should specify the range of
motion of the lumbar spine including
forward flexion, extension, left and
right lateral flexion, and left and right
rotation. The examiner should also
clearly identify the underlying pathology
for the low back pain.
If there are any associated objective
neurological abnormalities due to the
lumbar spine disability, such should be
noted on the examination report.
The examiner should indicate whether the
veteran has intervertebral disc disease
that is severe with recurring attacks and
intermittent relief or pronounced with
persistent symptoms compatible with
sciatic neuropathy with characteristic
pain and demonstrable muscle spasm,
absent ankle jerk, or other neurological
findings appropriate to the site of
diseased disc, with little intermittent
relief.
If the veteran has intervertebral disc
disease, the examiner should note whether
that disability causes incapacitating
episodes (doctor prescribed bed rest)
having a total duration of at least six
weeks during the past 12 months or
incapacitating episodes having a total
duration of at least four weeks but less
than six weeks during the past 12 months.
The examiner should also note whether
disc disease causes complete or partial
paralysis, or neuritis or neuralgia of
any nerve. If there is partial
paralysis, neuritis or neuralgia of any
nerve, the examiner should note whether
such paralysis is mild, moderate or
severe.
The examiner should specify the
functional loss, if any, caused by the
lumbar spine disability. The examiner
should indicate if there is functional
loss due to pain, pain on movement,
weakened movement, excess fatigability or
incoordination on movement, and whether
the pain significantly limits functional
ability during flare-ups or when the
lumber spine is used repeatedly over
time. If functional loss is detected,
the examiner should indicate what
objective evidence supports this finding.
The functional loss should be expressed
in terms of additional range of motion
loss. The examiner should also indicate
if there is any clinical evidence to
support the veteran's subjective
complaints. All tests deemed to be
necessary by the examiner should be
conducted. The examiner should provide
the complete rationale for all
conclusions reached. The report of the
examination should be associated with the
veteran's VA claims folder.
4. When the RO is satisfied that the
record is complete, the RO should review
all of the evidence of record and
readjudicate the issue of entitlement to
a disability evaluation in excess of 20
percent for chronic low back strain. The
RO should evaluate the claim under both
the old and the current VA regulations
for rating spine disabilities. If all
the desired benefits are not granted, an
appropriate supplemental statement of the
case should be furnished to the veteran
and her representative. They should be
afforded an opportunity to respond to the
supplemental statement of the case before
the claims folder is returned to the
Board for further appellate
consideration.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).